Opinion
CV136020234S
02-16-2016
Chris Ann Ruscio, Executrix of the Estate of Christy Fangiullo et al. v. Planning & Zoning Commission of the Town of Berlin
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Lois Tanzer, Judge Trial Referee.
Chris Ann Ruscio, executrix of the estate of Christy Fangiullo, and 656 Toll Gate Road, LLC (" plaintiffs"), applied to the defendant, the Planning and Zoning Commission of the town of Berlin (" commission"), for a resubdivision to create an extra building lot in an R-21 zone. On March 14, 2013, the commission denied the application after requiring that 10 percent of the properties involved in the resubdivision be dedicated to open space, which resulted in lots which did not meet the minimum size requirement of 21, 000 square feet in an R-21 zone. The plaintiff's appealed. In a decision dated June 20, 2014, this court sustained the appeal, concluding, " [T]here is lack of sufficient evidence on the record to support the commission's decision . The commission adopted the recommendations of the town planner during an executive session without consideration of the standards and alternatives for open space or consideration of the amount or percentage of open space required, independent of and not based on the representations in the town planner's memorandum. That memorandum contained information not previously presented at the public hearing in the matter. There is no evidence demonstrating that the plaintiffs' subdivision plan did not conform to the subdivision requirements, except for the reduction in lot size that would result as a consequence of the dedication of 10 percent of the property for open space." This court remanded the matter to the commission, with instructions to " consider the issue of open space in the context of a public hearing in order for the commission to consider the relevant standards and alternatives and to allow the plaintiffs an opportunity to be heard on this issue."
Upon remand, the defendant held public hearings on September 11 and October 9, 2014. The issue of open space was revisited and discussed at both sessions of the public hearing. The plaintiffs, staff and members of the public were given the opportunity to review and respond to the town planner's memorandum and recommendations and to address the plaintiffs' request to waive the open space requirement. A second issue came up at the September 11, 2014 hearing that had not been raised at the original proceedings in 2013. The town planner reported that the proposed building lot did not meet the required minimum " building square" dimension in the subdivision regulations. The hearing was continued to October 9, 2014, to give the plaintiffs and the public an opportunity to respond.
At the October 9, 2014 meeting, the three members and two alternates of the commission present unanimously denied the application because of the lack of a building square. Also, the commission, at first, voted 3-2 to waive the open space requirement. However, the legality of the vote of an alternate who had not attended the prior public hearing was raised, a revote resulted in a 2-2 tie, and the request to waive the open space requirement failed.
On November 5, 2014, the plaintiffs filed a motion to terminate remand and reargue. The plaintiffs argue that the commission wrongfully denied the application based on the lack of a building square which was beyond the scope of the remand, and that the 3-2 vote to waive the open space requirement was legal. On October 21, 2015, at a hearing before this court, the parties agreed to open the judgment entered in this appeal and to continue the appeal as a return after remand. The transcripts of the September 11 and October 9 meetings, along with minutes and two exhibits, have been submitted and are before the court as a Supplemental Return of Record. The plaintiffs now ask the court to find that the commission's vote approving the waiver of open space was legal and that the commission's denial of the application is null and void because it was beyond the scope of remand. The plaintiffs ask this court to sustain the appeal and to order the commission to approve their application.
The plaintiffs also filed an appeal (Docket No. CV-14-6027452-S). That appeal was commenced by the plaintiffs in order to protect their right to appeal from the commission's decision on remand. The plaintiffs alleged inter alia that the commission " (7) improperly considered the 'building square' issue at the remanded public hearing; and (8) improperly denied the vote of an alternate member in the determination of a waiver of the open space issue." The parties agreed to the dismissal of the appeal in Docket No. CV-14-6027452-S as duplicative. The appeal in Docket No. CV-14-6027452-S was dismissed on October 21, 2015.
As presented by the parties, the issues now before the court for its consideration are:
1) Whether the vote to waive the open space requirement was legal;
2) Whether the evidence was sufficient to require open space;
3) Whether the scope of the remand was exceeded; and
4) Whether the building square requirement was waived.
STANDARD OF REVIEW
When reviewing a subdivision application, a planning commission acts in an administrative capacity. Reed v. Planning & Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988). The commission is limited to determining whether the subdivision application complies with the subdivision regulations. R.B. Kent & Son, Inc. v. Planning Commission, 21 Conn.App. 370, 373, 573 A.2d 760 (1990). When reviewing a subdivision application, the commission must approve a subdivision if it conforms to the subdivision regulations. Paige v. Town Plan & Zoning Commission, 35 Conn.App. 646, 657, 646 A.2d 277 (1994), rev'd on other grounds, 235 Conn. 448, 668 A.2d 340 (1995). " Once a zoning violation has been found on the face of a submitted plan, a commission may not approve the plan. Reed v. Planning & Zoning Commission , [supra, 433]; Moscowitz v. Planning & Zoning Commission, 16 Conn.App. 303, 309, 547 A.2d 569 (1988). A commission may, at its discretion, choose between disapproval or approval with conditions. Moscowitz v. Planning & Zoning Commission, supra . A commission may even, under appropriate conditions, waive certain requirements by a three-quarters vote. General Statutes § 8-26." Krawski v. Planning & Zoning Commission, 21 Conn.App. 667, 673, 575 A.2d 1036, cert. denied, 215 Conn. 814, 576 A.2d 543 (1990).
" The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts . . . The trial court can sustain the [plaintiff's] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal . . ." (Internal quotation marks omitted.) Pelliccione v. Planning & Zoning Commission, 64 Conn.App. 320, 328, 780 A.2d 185, cert. denied, 258 Conn. 915, 782 A.2d 1245 (2001).
" [A] reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board." (Citation omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004). " [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Internal quotation marks omitted.) Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).
" When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). " Accordingly, the question for the [c]ourt is whether [any of] . . . the . . . reasons assigned by the [c]ommission are valid, and whether there is evidence in the record to support said reason. Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 697, (1993)." Daniels Hill Development, LLC v. Planning & Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV-99-0336142-S, (January 18, 2000, Eveleigh, J.) . " The commission's action must be upheld if even one of the stated reasons is sufficient to support the decision. Manchester v. Zoning Board of Appeals, 18 Conn.App. 69, 72, 556 A.2d 1026, cert. denied, 212 Conn. 804, 561 A.2d 946 (1989); Anastasiou v. Zoning Commission, 6 Conn.App. 278, 284, 505 A.2d 8 (1986)." Krawski v. Planning & Zoning Commission, supra, 21 Conn.App. 674-75. " Where a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995).
A. The Open Space Requirement
The plaintiffs' application was to create one extra building lot in the R-21 zone by combining a lot containing 8583 square feet with an additional 12, 540 square feet from an adjoining lot. The newly created lot would contain 21, 123 square feet; the adjoining lot would contain 23, 632 square feet. The minimum lot requirement in the R-21 zone is 21, 000 square feet. R-21 is a single-family residential zone.
General Statutes § 8-25 states, in part, that subdivision " regulations shall . . . provide that the commission may require the provisions of open spaces, parks and playgrounds when, and in places, deemed proper by the planning commission, which open spaces, parks and playgrounds shall be shown on the subdivision plan."
Chapter 54, § 54:00, of the Berlin Subdivision Regulations (" regulations") provide for reservation for open spaces, parks and playgrounds. Included in its purpose are the promotion of orderly development and the enhancement of public recreation opportunities. " The commission shall require the dedications of open space and/or land for recreation in locations and with public access deemed proper and adequate by the commission, for subdivisions not developed as open space subdivision or design open space developments . . ." Berlin Subdivision Regs., c. 54, art. V, § 54:02. " Land reserved for recreational purposes shall be of a character and location suitable for use as a playground, playfield or other recreational purpose, and shall be relatively level and dry." Id., § 54:04.
54:00 Reservation for open spaces, parks and playgrounds. 54:01. Purpose . It is the purpose of this section to:
1) Maintain and enhance the conservation of natural and scenic resources; 2) Protect natural streams or water supply; 3) Promote conservation of soils and wetlands; 4) Enhance the value to the public of abutting or neighboring parks, forests, wildlife preserves, nature reservations or sanctuaries or other open spaces; 5) Enhance public recreation opportunities; 6) Promote orderly development; and 7) Protect ridgelines.
1. Lack of Evidence
The commission on remand provided the plaintiffs and the public with an opportunity to address the open space requirement and whether it should be waived. The plaintiffs now argue that no evidence was introduced at the remanded hearing on the issue of open space except for the town planner's statement that it would be nice to have a " pocket park." The plaintiffs questioned the necessity for a 4000-square-foot " pocket park" and requested the commission waive the open space requirement. The plaintiffs argued to the commission that requiring 4000 square feet of open space would force the denial of the application because the lot size would be below the 21, 000-square-foot minimum area requirement for R-21 zones. According to the plaintiffs, the commission did not make a finding of a demonstrated need or a finding concerning the standards for open space. The standards are set forth in § 54:031 of the regulations, which states, " In all residential zones, the commission may require dedication of open space and/or recreational land in an amount not exceeding ten percent of the gross land area of the subdivision. Such land shall be of a suitable size, dimension, topography and general character, and have adequate road access, for the particular purpose envisioned by the commission." Id., § 54:031.
The commission heard from the town planner regarding open space. The town planner stood by her memorandum which had previously been submitted after the close of the public hearing and during the executive session on March 14, 2013. She states therein, " [W]ith the great congestion created by the multi family and in light [of] there not being any [t]own [p]arks in the immediate area, I am recommending that land is necessary to maintain the quality of life that this town has come to expect and as desired in our Plan of Conservation and Development." She further explained during the hearing, " I've got one . . . residence that has three times the amount of density and now we're putting . . . in another lot . . . In 4000 square feet . . . pocket park, swing sets . . . some outdoor life for the increased density . . ."
The commission's March 14, 2013 denial of the plaintiffs' application was based on evidence presented after the public hearing and before the plaintiffs had an opportunity to counter it. It was for that reason the court found the evidence insufficient. In appraising the sufficiency of the record now before it, the court must determine only whether there was substantial evidence which reasonably supported the administrative decision. " Where a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision." Bloom v. Zoning Board of Appeals, supra, 233 Conn. 208. The record as supplemented now reveals the commission had before it substantial evidence including evidence of density, the lack of recreational opportunities and the sufficiency of the space for them to require open space. The members of the commission also had before them a certified copy of the zoning map and the diagrams of the lots in question and they were " entitled to consider any facts, concerning the area, traffic, intersection and surrounding circumstances, which they had learned by personal observation . . ." Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 675, 236 A.2d 917 (1967).
2. Waiver of the Open Space Requirement
General Statutes § 8-26(a) authorizes a local planning commission to adopt provisions for the waiver of certain requirements. As set forth in § 54:033 of the regulations, " The commission may waive the requirement for the dedication of open space for any subdivision creating four or less building lots and being less than six times the area of the minimum sized lot within the underlying zone or having an overall area less than two and one half acres." Berlin Subdivision Regs., c. 54, art. V, § 54:033. While the transcript of the September 11, 2014 hearing and executive session is not entirely clear, the parties hereto agree that initially the commission voted in favor of the plaintiffs' request for a waiver of open space by a vote of 3-2. However, the eligibility of one of the alternates to vote was questioned because that alternate had not been seated at the prior public hearings, including the first hearing after remand on September 11. A revote resulted in a 2-2 tie. Accordingly, the motion to waive open space did not pass.
Such [subdivision] regulations may contain provisions whereby the commission may waive certain requirements under the regulations by a three-quarters vote of all the members of the commission in cases where conditions exist which affect the subject land and are not generally applicable to other land in the area, provided that the regulations shall specify the conditions under which a waiver may be considered and shall provide that no waiver shall be granted that would have a significant adverse effect on adjacent property or on public health and safety. Section 8-26(a) of the General Statutes provides in pertinent part:
Moreover, and in any event, as mandated by General Statutes § 8-26(a), the waiver must be approved by a " three-quarters vote of all the members of the commission." As such, although there was some support for waiver of open space, there was not enough to constitute a three-quarters vote of the seven-member commission, or a supermajority, as required by General Statutes § 8-26(a), a point acknowledged and conceded by the parties at argument before this court. Further, there was no statement on the record, as required by § 8-26(a) that " there are special conditions affecting the parcel that do not affect other land in the area and the waiver will not adversely affect adjacent property or public health and safety." Waiver failed as to both requirements.
B. The Minimum Building Square Requirement
The minimum building square requirement is found in § 53:03 of the Subdivision Regulations and provides: " Each building lot shall be of a size and configurations that it will contain exclusive of the required side, front and rear yards, a rectangle of the size required." (Emphasis added.) Berlin Subdivision Regs., c. 53, art. V, § 53:03. In an R-21 zone, the minimum dimension is ninety feet in width and depth after deduction for all side, front and rear yards.
The building square requirement was not raised during the public hearings in 2013 and was not listed as a reason for the denial of the plaintiffs' application. The plaintiffs contend that this issue was not the reason for the court's remand and that the commission had no authority to consider it on remand. The building square issue was raised for the first time at the September 11, 2014 public hearing. The hearing was continued to October 9, 2014, to give the commission, the public, and the plaintiffs an opportunity to address the building square issue at the hearing. The plaintiffs did not then and do not now contest the finding that the application fails to meet the building square requirement of the subdivision regulations.
1. Scope of Remand
This court remanded the plaintiffs' application to the commission " with instructions to consider the issue of open space in the context of a public hearing in order for the commission to consider the relevant standards and alternatives and to allow the plaintiff an opportunity to be heard on the issue." Connecticut courts have not discussed or analyzed in depth the scope of remand in the context of a land use administrative appeal, and neither the plaintiffs nor the defendant have provided this court with any authority.
Well established principles, however, govern further proceedings after a remand by an appellate court to the trial court. " In carrying out a mandate of [an appellate] court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion . . . This is the guiding principle that the trial court must observe . . . It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning . . . The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein . . . We have rejected efforts to construe our remand orders so narrowly as to prohibit a trial court from considering matters relevant to the issues upon which further proceedings are ordered that may not have been envisioned at the time of the remand . . . So long as these matters are not extraneous to the issues and purposes of the remand, they may be brought into the remand hearing." (Citations omitted; emphasis in original; internal quotation marks omitted.) Higgins v. Karp, 243 Conn. 495, 502-03, 706 A.2d 1 (1998).
Applying those principles to this case, this court concludes that the commission did not exceed the scope of remand when it considered evidence that it could not approve the plaintiffs' application because it could not meet the building square requirement. The court did not order a specific judgment or order the commission to take a specific action. The court did not preclude the commission from considering relevant evidence. Rather, under the circumstances, the remand opened the door to consideration of relevant evidence from the plaintiffs and the public in the context of a public hearing on open space, and the standards and alternatives . It was in the process of exploring alternatives to requiring dedication of 10 percent of the lots to open space that the building square requirement was encountered by the town planner. She stated, " [S]o I was playing with the layouts of the lot to see if there was any way that there would be enough land for us to take and to take the rest of the 10 percent and fee in lieu of, and see if . . . we could compromise. And if then, there would be land enough for their 21, 000, but still have a little bit of an area for a play scape . . . so I was drawing on the maps and trying to figure out where we could take some land to get our, you know, 10 percent combination . . . As I was playing with that, I made a discovery that I have to share with you, is that there is no buildable square on this lot."
See General Statutes § 8-8(l) which provides, in part, that the court, after a hearing thereon, may reverse or affirm, wholly or partly, or may revise, modify or remand the decision from which the appeal was taken in a manner consistent with the evidence in the record before it.
The building square deficiency became apparent to the town planner, the commission, the plaintiffs and the public in the context of the court's instruction to " consider the relevant standards and alternatives ." The commission did not exceed the scope of this court's remand.
2. Waiver of the Building Square Requirement
The plaintiffs also argue that because the commission did not act on the building square requirement during the initial hearings on the plaintiffs' application in 2013, it implicitly waived that requirement. The plaintiffs cite General Statutes § 8-26(d), which provides, in relevant part: " The failure of the commission to act thereon shall be considered as an approval . . ."
The regulations do not have a waiver provision with respect to the building square requirement. The regulations do not contain a general waiver provision that applies to all articles, sections or provisions. There are the only two limited areas in which the commission has adopted the waiver authority provided for in § 8-26(a): (1) with respect to open space, § 54:03.3; and (2) with respect to improvements such as sidewalks, streets and utilities covered in Article IV. In light of the clear mandate in the enabling statute, no waiver of any other provision or requirement is possible unless the commission sees fit to amend its regulations to expand the requirements or provisions that may be waived. The plaintiffs provided no persuasive argument or authority for the proposition that the commission had waived the buildable square requirement or that § 8-26(d) applied in the circumstances of this case, other than to cite it.
Conclusion
The commission did not exceed the scope of remand in denying the plaintiffs' application on grounds of failure to comply with buildable square requirements of the subdivision regulations. The commission did not act illegally and arbitrarily, or in abuse of discretion when it did not grant a waiver of the open space requirement in the subdivision regulations.
For the foregoing reasons, the appeal is dismissed.
SO ORDERED